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____________________
Breyer,* Chief Judge,
___________
Cyr and Boudin, Circuit Judges.
______________
____________________
_______
James W. Stoll, with whom Emanuel Alves and Brown, Rudnick, Fr
______________
_____________
__________________
& Gesmer, P.C. were on brief for FDIC.
______________
____________________
August 26, 1994
____________________
____________________
CYR,
CYR,
Corporation
Circuit Judge.
Circuit Judge.
_____________
(FDIC),
as
The
receiver,
Federal Deposit
obtained
summary
Insurance
judgment
appeal, defendants
are not
barred by
guaranties.
On
to FDIC's claims
FDIC, 315
____
counterpart, 12 U.S.C.
U.S. 447
1823(e).
We
I
I
BACKGROUND1
BACKGROUND
__________
In March 1987, defendant-appellant Bay
ment Corporation (Bay Street) entered
First
a condominium construction
maximum loan
_______
made over
project.
principal at $9
time subject
Loan Agreement.
The Loan
to certain
Contemporaneously,
to
Street Develop-
the
Street principals,
____________________
to be
loan
Pursuant
any liability
Ryan had
Multiple Guaranty
of $5.7
million.
ment.
In
June 1987,
Bay
Street failed
to satisfy
certain
Bay
Street attempted to
defaults.
Finally,
meeting),
FMB
would release
to cure
the
the
Arnone informed
undisbursed balance
of
the $9
Ryan that
million
guaranty
(the
Additional Guaranty).
On
executed the
Additional Guaranty, which expressly stated that he was guarantying an additional $6.5 million in order "to induce
[FMB] to make
further
_______
[A]greement."
___________
loan
____
advances
________
(emphasis added).
to
__
default,
[L]oan
______
and the
the
___
pursuant
________
At
Agreement to $6
Additional Guaranty.
As
Ryan and
Guaranty
full pursuant to
in
the terms of
the
Loan
Agreement and
the
loan guaranties.
The defendants
June
1989, FMB
initiated
the
present action
in
Multiple
Guaranty (Count
2); and
Ryan
breach of
for breach
of the
filed coun-
terclaims
the
from
the Multiple
Guaranty, which
Agreement.
3,
by Byrne
and Timilty
Guaranty
by
that FMB
had released
accepting the
Additional
of the Loan
a genuine dispute
Count
remained as to whether
action to
federal district
placed in receiver-
3 and on the
Ryan
and Bay
court, then
remaining Bay
Street countered
In due
defen-
dants' counterclaims,
on Counts 1 and 2.
for reconsideration
II
II
DISCUSSION
DISCUSSION
__________
A.
A.
with Fed.
R. Civ. P. 56, see RTC v. Northpark Joint Venture, 958 F.2d 1313,
___ ___
_______________________
1316 (5th
with
any summary
court ruling
judgment order,
de novo,
__ ____
Thus,
the
(1993).
review the
will be upheld
As
district
summary judgment
8 F.3d at
if the
record,
nonmoving
party,
moving
most favorable
____________________
id., we
___
summary judgment
light
to
the
Id.
___
B.
B.
on appeal, as
before the
3,
FMB, through
concerning whether
Arnone, orally
on Count
promised to
release
under
the entire
______
the Loan
defaults
Street.
language in
viz., "Ryan .
____
pursuant to
Bay Street
the
the loan
entire
undisbursed
that the
ambiguous,
. hereby
Based
on Ryan's
p. 4, Bay
Guaranty was
$6,500,000."
and future
Ryan argue
agreement referred to
. . .
loan commitment
any past
and
Additional
. . to induce [FMB] to
unconditionally guarantees
affidavit
of its
Agreement, notwithstanding
by Bay
following
undisbursed balance
balance ($4.5
million)
it
originally
to past
absent
is
v. FDIC,
____
a reasonably
not sustainable
315 U.S.
explicit
against
447 (1942);
FDIC,
see
___
12 U.S.C.
written agreement
_______
in
880 F.2d 1267, 1275-76 (11th Cir. 1989) (on similar facts,
inquiring whether
of the
____________________
___
____
supra.
_____
8
evidencing an
entire project).
ambiguous
The only
commitment of
writing argu-
this
type is
the
advances."
Bay
Street and
not clear
which it appears, or
induce FMB to
as much
document drawn
by
phrase
by [FMB] in
to there-
in."
Absent
extrinsic
evidence,
the
Additional
Guaranty
Loan Agreement.
to fund
intention to
v. RTC,
___
16
See Sweeney
___ _______
further construction.
At
most, they
reflect an
omitted), peti_____
tion for
____ ___
cert. filed, 62
_____ _____
FDIC v.
____
1823(e)
mandate
of obligations set
defenses
1225, 1231
that promises be
struction loan
2, 1994) (No.
FDIC.
(5th
"in writ-
out on the
evidence of
ambiguous reference to
a further con-
project.");
RTC v.
___
Daddona,
_______
9 F.3d
312,
319 (3d
Cir.
1993)
("[T]he
essential
terms .
. .
[of
an agreement
must] appear
bilateral nature of
that his
breach of contract
defense is
See Howell v.
___ ______
under
face of instrument
seeks to enforce
manifests
Howell is inapposite
______
The defenses
dependent
on parol
concedes
that the
induce [FMB] to
afforded
alleged
FDIC
relied on
agreements,
language in
make further
explicit
in Howell
______
see id.
___ ___
were in
at
the Additional
747, whereas
Ryan
Guaranty
"to
loan advances"
notice of
the
could not
specific
________
terms
_____
have
of the
no respect
7.
misplaced.
Thus, reliance
on the so-called
See supra
___ _____
Howell exception is
______
See FDIC v. O'Neil, 809 F.2d 350, 354 (7th Cir. 1987)
___ ____
______
____________________
5Altogether
apart
10
(Howell exception
______
inapplicable where
appear explicitly
on face of
face of
note did
bank's obligation
did not
to enforce);
not manifest
bilateral
obligations); Two
___
Rivers, 880 F.2d at 1275 ("This is not a case like [Howell] where
______
______
the
tions.'").
The legislative policy
the value of
86, 91
(1987).
bank assets.
There is
A primary aim of
no indication
that
in
FDIC, 484
____
the Arnone
932
___
favors
the interests
______
of depositors
______________
and
creditors of
a failed
court did
not err
in awarding
FDIC summary
The
judgment
judgment order
Byrne and
on the
Timilty
ground that
challenge
the
summary
the Additional
Guaranty ac-
Guaranty and
11
the Loan
("[A] substantial
the
change
him from
in
910 (Mass.
conditions to
which
consent of the
1970)
a
bond
surety,
liability.") (applying
Mass. law;
(7th Cir.
rule).
Their resource-
matter, effectively
Guaranty, see
___
them for
Guaranty.
But
any
because
the Additional
under the
Multiple
Guaranty increased
Guaranty), well
insist that
liability incurred
beyond his
(the
the
Byrne and
on the Multiple
Thus,
Timilty
Guaranty was
to $2.5 million.
they argue,
____________________
is
manner.
Further,
make no claim
that either
______
obligation
See
___
III
III
CONCLUSION
CONCLUSION
__________
For the foregoing reasons, the district
must be affirmed.
Affirmed.
Affirmed.
________
court judgment
13